The writ of execution for seizure of property

Implementation of the foreclosure procedure depends very much on the nature of the writ of execution in the creditor's possession.

Enforcement order and seizure of property

The writ of execution is the document bearing the enforcement formula, the enforcement of which is pursued by the court commissioner. 

It should be remembered that you need to be in possession of a writ of execution in order to initiate a property seizure procedure, in accordance with the provisions of article L. 311-2 of the French Code of Civil Enforcement Procedures (Code des procédures civiles d'exécution): " Any creditor in possession of a writ of execution recording a claim that is due and payable may seize property under the conditions laid down by this Book and by the provisions of Book I that do not conflict with it. 

Article L. 111-3 of the Code of Civil Enforcement Procedures lists the acts that may constitute an enforcement order: "Only the following constitute enforceable titles: 

1° Judicial or administrative decisions when they are enforceable, as well as agreements on which these courts have conferred enforceability; 

2° Foreign deeds and judgments and arbitration awards declared enforceable by a decision that is not subject to an appeal suspending enforcement, without prejudice to the provisions of European Union law applicable ; 

3° Extracts from conciliation reports signed by the judge and the parties; 

4° Notarial deeds bearing the executory clause; 

4° bis Agreements by which the spouses mutually consent to their divorce by private deed countersigned by lawyers, filed with a notary in accordance with the procedures set out in Article 229-1 of the Civil Code; 

5° The document issued by the bailiff in the event of non-payment of a cheque or in the event of an agreement between the creditor and the debtor under the conditions set out in Article L. 125-1 ; 

6° Certificates issued by legal entities governed by public law and qualified as such by law, or decisions to which the law attaches the effects of a judgment. 

Only the most common enforceable titles will be analysed: summary orders, court decisions and authentic instruments.

Interim order

The first paragraph of Article L. 311-4 of the Code of Civil Enforcement Procedures states that "Where proceedings have been commenced by virtue of a provisionally enforceable court decision, the compulsory sale may only take place after a final decision has become res judicata. 

Article 484 of the Code of Civil Procedure states that "An interlocutory injunction is a provisional order made at the request of a party, the other party being present or called, in cases where the law confers on a judge who is not seised of the main proceedings the power to order the necessary measures immediately. 

As the summary order is a provisional decision, it allows the property seizure procedure to be initiated, but not the forced sale. 

An out-of-court sale, on the other hand, may be ordered if requested by the seized debtor.

The judgment or ruling

The second paragraph of Article L. 311-4 of the Code of Civil Enforcement Procedures states that "During the opposition period, no proceedings may be instituted by virtue of a decision rendered by default. 

The concept of a default judgment is defined in article 473 of the Code of Civil Procedure: "When the defendant does not appear, the judgment is rendered by default if the decision is final and if the summons was not delivered in person. 

The judgment is deemed to have been rendered in contradictory form when the decision is subject to appeal or when the summons has been delivered to the defendant. 

Proceedings are therefore possible, except in the case of a default judgment for which the opposition period has not been served. 

The deed

Notaries can issue enforceable copies of their deeds, i.e. copies that can be used to implement a compulsory execution procedure, such as the seizure of property. 

The notarial deed, like a court judgment, may set the quantum (the amount) of a claim; but most of the time, it will simply establish the principle of the claim. 

This is a common example of a bank loan recorded in a notarial deed. The deed will set out the details of the loan (amount, interest rate, term, monthly repayments, etc.), with the loan agreement attached. 

If, as a result of non-payment, the bank declares that the term has expired, for example in application of the provisions of Article L. 312-39 of the French Consumer Codeit will set the quantum of its debt, which will be made up, for the past, of unpaid instalments and, for the future, of the outstanding capital. 

Article L. 311-2 of the French Code of Civil Enforcement Procedures states that "Any creditor in possession of a writ of execution evidencing a debt that is due and payable may foreclose on the property.for authentic instruments : 

• The creditor has an enforceable title, in the form of an authenticated deed, 
• But he liquidates his claim by setting his quantum by declaring that the term of the loan has expired, thereby rendering the outstanding capital due and payable.